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TMI Blog2021 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... hem under the Customs Tariff Item No.8517 12 90 of Schedule I to the Customs Tariff Act, 1975 and paid Countervailing Duty (C.V.D.) under Section 3(1) of the Customs Act at the rate of 6% as per Sl.No.263A(i) of Notification No.12/2012-CE dt.17.03.2012 (Exemption Notification). 5. But, under Sl.No.263A(i) of the Exemption Notification, the mobile phones were chargeable to concessional rate of 1% subject to the condition No.16 of the Exemption Notification, and that this condition specified that no credit should have been availed on the inputs or capital goods used in the manufacture of mobile phones. 6. At the time of import of mobile phones in the BoE, petitioner had not claimed any exemption under Sl.No.263A(ii) of the Exemption Notification which allowed a payment of C.V.D. at 1%. 7. Petitioner contends that this reduced rate was not availed of by it as the 2nd respondent had taken a stand that such exemption is available only when the assessee has not taken credit in respect of the inputs and capitals goods under the CENVAT Credit Rules, 2004 for the manufacture of mobile phones; since the inputs and capital goods in the present case were procured and utilized outside India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied under the relevant provisions of the Customs Act; that the observations of the Supreme Court show that apart from Section 128 of the Customs Act, there are other relevant provisions of the said Act under which a BoE can be modified before refund can be claimed under Section 27 of the Customs Act; (c) that Section 149 does not prescribe any time limit or any other restriction and that this has been recognized in the various cases by the CESTAT; and (d) that Section 17(5) provided that where reassessment done under sub-section 17(4) is contrary to the assessment done by the importer or exporter regarding the matters specified therein, the proper officer has to pass a speaking order on the reassessment within 15 days from the date of reassessment of the Bill of Entry or the shipping bill, as the case may be, and relied on the decision in Usha International Ltd. vs. Assistant Commissioner of Customs, Chennai 2019 (365) E.L.T. 56 (Mad.). The impugned order dt.7.2.2020 13. The 2nd respondent then issued the impugned order dt.07.02.2020 in C.No.S/26/MISC/122-2020-ACC rejecting petitioner's request / application vide letter dt.22.11.2019 for amendment in the Bills of Entry under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 27 of the Customs Act; and that the impugned order is completely illegal as the 2nd respondent was bound to follow the decision of the Supreme Court which he failed to do and failed to exercise the jurisdiction. 16. The petitioner also contended that the 2nd respondent had referred to in Order-in-Appeal No.HYD-CUS-000-APP-022-19-20 dt.28.06.2019 passed by the Commissioner of Customs and Central Excise (Appeal-I), Hyderabad for upholding the rejection of the amendment application filed by petitioner for a different period; that this order was passed prior to the decision in ITC Ltd. (2 supra) on 18.9.2019 which laid down the law very clearly; and so could not have been relied on by the 2nd respondent. 17. It is further contended by the petitioner that the impugned order has erroneously rejected the amendment of the BoEs under Section 149 of the Customs Act; that Section 149 provided for amendment of a BoE on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported; that the only restriction is Section 30 and 41 of the Act which relates to export and import manifest which are not allowed to be amended or where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 27 of the Customs Act, 1962, and the same was rejected by the original authority; and aggrieved by the orders, the petitioner herein filed Appeal before the 2nd respondent wherein the appellate authority held that appellant should have applied for re-assessment under the provisions of Section 128 of the Customs At, 1962 instead of seeking amendment under the provisions of Section 149 of the Customs Act, 1962 as reassessment was the only remedy available to petitioner; and aggrieved by the orders of the Appellate Commissioner, the petitioner filed Appeal before the CESTAT, which is pending. 23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissible when the Bill of Entry had been amended or modified under the provisions of the Customs Act, 1962; that in ITC Ltd. (2 supra), it was held that the refund under the provisions of Section 27 of the Customs Act, 1962 would only be available when Bill of Entry has been amended or modified under the provisions of Custom Act, 1962; that in the instant case, the petitioners filed self-assessed Bills of Entry and not disputed the assessment, and the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow it to be presented within a further period of thirty days.] 30. So it provides a remedy of appeal against any order passed by the Dy. Commissioner of Customs, who is lower in rank than a Commissioner of Customs, to the Commissioner (Appeals). 31. Therefore, the petitioner has a remedy of an appeal against the assessment of the BoEs in question. 32. But there is another provision in the Customs Act, 1962 which also enables an assessee to seek amendment of a BoE. It is Section 149 of Customs Act, 1962, which reads as under : "149. Amendment of documents : Save as otherwise provided in sections 30 and 41 the proper officer may in his discretion authorize any document after it has been presented in the customs house to be amended. Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be."(emphasis supplied) 33. So Sec.149 is an additional r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n existence at the time i.e. August, 2014 to January, 2015 when the goods pertaining to the relevant BoEs were cleared, and so the amendment that petitioner requested cannot be made to those BoEs. 39. It is clear that the 2nd respondent had taken the decision of the Supreme Court as "documentary evidence" which was not in existence at the time of clearance of the goods. 40. Law declared by the Supreme Court, unless made prospective in operation in its judgment, is always deemed to be the law of the land. It cannot be construed as applicable only after the date of pronouncement of the judgment of the Supreme Court. 41. In M.A. Murthy v. State of Karnataka (2003) 7 SCC 517, the Supreme Court had declared: " 8. ... Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab AIR 1967 SC 1643 .... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision in M/s. ITC Ltd. (2 supra) had been rendered before the decision in the Appeal was given by the Commissioner (Appeals), even the said officer would have followed it. 48. Further, it is the duty and responsibility of the Assessing Officer / Assistant Commissioner to correctly determine the duty leviable in accordance with law before clearing the goods for Home consumption. The assessing officer instead, having failed in correctly determining the duty payable, has caused serious prejudice to the importer / petitioner at the first instance. Thereafter, in refusing to amend the Bill of Entry under Section 149 of the Act, to enable the importer / petitioner to claim refund of the excess duty paid, the Assessing Authority / Assistant Commissioner caused further great injustice to petitioner. 49. Also, the Assessing Authority has failed to consider the fact that Section 149 of the Act does not prescribe any time limit for amending the Bill of Entry filed and assessed. The power to amend under Section 149 of the Act is a discretionary power vested with the authority. Since, it is due to incorrect determination of duty by the assessing authority initially, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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